The Law of Bail in India

Bail is the partial release of an accused (in criminal cases) whose case is ongoing in the court. The word bail was taken from a French verb which originally meant giving or delivering. The offences are differentiated in two sections namely bailable offences and non-bailable offence. Zamanat and Muchalka are the terms used in Mughal History Literature referring to bail.

What is Bail?

Bail is defined as temporary release of a person who was accused in a criminal case and who is still awaiting a trial in the court. At times to ensure that the accused would appear before the court when needed, some amount of money is to be paid as a necessary condition of bail. It is applicable to anyone who is arrested and can be brought into existence anytime after the arrest. However, not everyone is eligible to get bail. Someone who is arrested for a very serious crime can only get bail after guaranteeing to appear in the court for hearings by paying the bail bond.

                            Bail is not defined in the Criminal Procedure Code, 1973 but bailable and non-bailable offences are defined in Section 2(a) of CrPC. The definitions of the terms are as follows:  ‘Bailable offence means an offence which is shown as bailable in the First Schedule or which is made bailable by any other law for the time being enforce, and non-bailable offence means any other offence.’

Bails and bonds are dealt with in chapter XXXIII i.e. section 436 to 450 of the Code of Criminal procedure.

Types of Bails in India

Commonly, four types of Bails are granted in India depending on the offence. Namely:

  • Regular Bail – This kind of bail is mostly common after arrest of a person i.e. who is already in a police custody. Under Section 437 and Section 439 of CrPC, pleading for regular bail can be made.
  • Interim Bail – Interim Bail is made during the hearing process of proposal of regular bail and anticipatory bail. It is generally given for a very short time period.
  • Anticipatory Bail – A person who is believed to be arrested by the police force for a non-bailable crime can file a proposal for anticipatory bail. It is granted by the High Court or the Session Court under Section 438 of CrPC.
  • Default Bail – This kind of bail is given to a person in judicial custody undergoing a trial who has already completed half of the maximum punishment awarded by the court for the offence. It is covered under Section 436A of Code of Criminal Procedure.

Regular Bail

A person applies for a Regular Bail after his arrest by the police while he is in their custody. It might be when a person is accused of having committed a cognizable, non-bailable crime or only a bailable crime. A regular bail is given after ensuring that the accused will appear before the court at the required time. It is the most commonly granted bail in India.

                Right to be released from police custody for the accused is ensured by Sections 437 and 439 of CrPC. The accused can apply for a bail in Session Courts and High Courts. Sometimes accused are charged bail bonds to make sure that they will make an appearance in the court for their hearing.

Bail Bond

Bail bonds are decided by the courts where the case of the accused is filed. He/she is bound to the bail bond. If the accused fails to present himself in the court at the given time his security paid as bail bond is confiscated by the court. The security includes cash, property papers, insurance coverage etc. Bail bond can be reimbursed to the accused if he makes all the necessary appearances in the courts and does not get arrested again while on a bail.

Bailable Offences

In case of these offences, the accused is given the right to be granted bail. The bail can be given by police officer in charge of the accused or the court to whom the accused is liable. The accused has to provide the court with bail bond to avail the bail.

Few examples of these offences are –

  • Participation in unlawful assembly
  • Causing nuisance in a peaceful religious assembly
  • Producing false evidence in the Court
  • Bribing the citizens during election campaigns
  • Public servant refusing to take oath at prescribed time
  • Selling of unfit quality food and drinks

Conditions of Bail for Bailable Offences

Conditions of granting a bail in bailable offences are laid down by Section 436(1) of CrPC under the Indian Penal Code. It states that if a person is arrested and brought to the court for any kind of bailable offences and if he/she is set to avail bail, he can be released on bail. The bail is either sanctioned by the police officer in charge or by the court where the accused is brought.

To avail bail under bailable offence accused should satisfy the authority the following things:

  • The accused gets a benefit of doubt in the commitment of crime (He/she appears to be innocent).
  • Enquiry of the offence to confirm whether he/she was involved in the crime is required.
  • The offence is minor and does not have anything to do with imprisonment for 10 years, life imprisonment or death.

There are conditions laid down under sub-section (2) of this section to refuse one’s bail in case he/she does not appear in the court as promised in the bail bond even if the crime is bailable.

Non-bailable Offences

In these kinds of offences, the accused has no right to bail but has to ask for a proper permission from the court. The court has the right to grant or refuse the bail keeping in context the facts of the case. The application asking for bail has to be duly filed to the magistrate conducting the trial.

Few examples of such offences are –

  • Committing or attempt to commit murder
  • Committing or attempt to rape
  • Injuring another individual voluntarily
  • Kidnapping

Conditions of Bail for Non-bailable Offences

Although it is not a right to avail bail in case the offence said to be done by the accused is non-bailable but an accused is still given an option to plead for bail under Section 437 of the Code of Criminal Procedure. Only the High Court or Session Court (wherever the accused is presented) can grant bail for non-bailable offences.

Bail in non-bailable offences can be granted to a woman or child or if there are not enough evidences to prove the guilt of the accused. It can also be granted in case the accused is very sick or the complainant delays in lodging an FIR against the accused. However, the Court can refuse to grant bail if there are enough evidences to prove the participation of the accused in the crime or if the accused has been involved in grave crimes earlier than the present case too.

The conditions necessary for the release of the accused include:

  • Appearing the court as specified in the bail bond.
  • Giving an undertaking to not repeat any similar offence.
  • Giving an undertaking to not get involved with any person related to the case directly or indirectly.

Cancellation of the Bail

The court has the right to refuse the granting of the bail and also has the right to cancel the bail at any given time even if the bail was granted earlier. The court can direct the police to arrest a person again even if his bail was granted. Section 437(5) and 439(2) or CrPC has provided the Court with the power to cancel or refuse the bail at any point of time.

Cases related to Bail

  • ANKIT SHARMA v. STATE OF NCT DELHI AND ANR (2014)

In this case, the petitioner filed a petition to cancel the bail of Gopal Goyal Kanda under Section 439(2) and 482

JUDGEMENT – Delhi Court gave difference between two elements of bails i.e. rejection of bail and cancellation of bail by stating that the circumstances of both the things are different on many grounds. During the cancellation of bail the Court pays emphasis on whether the conditions of bail have been violated in reality or not while in case of rejection of bail, the Court only cares about the violation of conditions of the bail.

  • DEEPAK KUMAR SAH v. STATE OF BIHAR (2015)

The petitioner, Deepak Kumar pleaded to avail the bail under Section 376, 420 and various other sections of the Indian Penal Code

JUDGEMENT – The complainant was pregnant due to having physical relations with the petitioner who was imprisoned for 9 months so Patna High Court stated that the petitioner was liable to take care of the complainant and had to be with her during the time of delivery and hence, should be granted a bail for the same reason with a bail bond of Rs. 10,000.

  • SANTOSH KUMAR MANDAL v. STATE (2016)

The petitioner applied for a regular bail under Section 12 of Protection of Children from Sexual Offence Act, 2012 and Section 354(D)/342/363/506 of Indian Penal Code

JUDGEMENT – The Court refused the bail with respect to the Protection of Children from Sexual Offences Act stating that the offence committed by the petitioner was a non-bailable offence and there was no right defined under the section to claim the grant of bail by him.

  • NITYANAND RAI v. STATE OF BIHAR (2005)

JUDGEMENT – The Bihar High Court stated that to cancel a bail, the conditions to be seen are the ones arisen after the granting of bail. The whole process takes place in reference to the conduct of the accused after he is out of the prison on bail.

  • ANIL MAHAJAN v. COMMISSIONER OF CUSTOMS & ANR (2002)

The petitioner stayed in judicial custody since August 1999 and applied for a bail earlier in September 1999 as well which was dismissed by the court as he was found to be involved in a serious economical offence which he performed deliberately for his personal profit without thinking about the consequences to the nation.

JUDGEMENT – The court stated that since the legislature has not laid down any special provisions to treat economic offences, general principles to grant bail that are applicable on all offences are to be applied in cases involving economic offences as well.

Critical Analysis

Bail has its root in Indian Criminal Justice System since a very long time. One can be released from prison on bail after he/she has been arrested. The Indian Criminal justice System has a fundamental principle that punishment should be awarded only after the conviction clarifying that a person has the right to freedom unless it is taken away by the law. In Maneka Gandhi v. Union of India, the Apex Court stated that one cannot be deprived of their freedom without a proper process and if such an offence is made it is punishable by law.

Presuming that the accused is innocent before he is proved to be guilty on strong grounds of evidence is also a common practice of the Indian Criminal Justice System. The concept of Bail is introduced to make sure that personal liberty of a person provided under Article 21 of the Indian Constitution is secured.

In Vaman Narayan Ghaiya v. State of Rajasthan, the court stated the importance of bail in the administration of justice and also informed that the law of bail has its own philosophy.

With the flow of time, there had been concerns about the successions of bail applications. Another bail application is not allowed to be filed with the same facts. Section 362 of CrPC was found to have no application on bail by the Bar.

During the hearing of the case of Kalyan Chandra Sarkar v. Rajesh Ranjan, the Apex Court stated that if there are considerable changes in the situations and facts of a case then the accused has access to apply for another bail and nobody can deny the access of the accused in such cases.

There was another case Lt. Col. Prasad Shrikant Purohit v. State of Maharashtra where the Court allowed succession of application of bail but stated that the reasons for which the bail was rejected in earlier proceedings should be kept in consideration by the Court and if in case the bail is granted, the reasons that supported the granting the bail contrary to the earlier decisions have to be recorded.

Conclusion

Bail is a legal aid for suspects as they can secure their liberty with the sections under which bail comes and it is an effective measure to make sure than no innocent person has to suffer and stay in prison for a crime they have not committed. Bail is said to be defined as a source to ensure proper functioning of the judicial system of the country without causing any harm to the fundamental rights and standard of living of the citizens of the country.

The Indian Judicial System takes time to proceed with the cases collecting all the needed evidences and it is not supported that an innocent person has to stay in prison till he is proved innocent in the Court. This also makes bail a very important step in Justice System of India.

However, one problem faced by the process of bail is that its granting also takes a good amount of time in the court because of their overburdening with a lot of cases which in the end, affects the suspect’s liberty. Hence, it is greatly suggested that the matters of bails should be given a preference in the Courts. If the bail is delayed it can ruin an innocent person’s entire life and will be against their as well as society’s welfare.

Although it is said that to grant bails evidences to prove the accused guilty are a deciding factor but it is often seen that the nature of the crime is a leading reason for refusal or rejection of the bail and a person suspected to have done a grave offence is hardly granted bail. This is seen to be a wrong practice as an innocent might be labeled for a grave crime he did not commit in reality. Therefore, the granting of bail should be evidence based in practical application too.

Another drawback in the law of bail is that in some offences like offences coming under the Narcotic Drugs and Psychotropic Substances Act, 1985, crime against women i.e. rape (Section 375) and married women facing cruelty (Section 498A), crime against scheduled caste and scheduled tribes under Prevention of Atrocities Act, 1989 instead of considering the accused innocent before the Court proves him guilty, the accused is considered guilty before the Court proves him innocent. It is very hard to get bail in such offences, which is wrong since the accused might actually be innocent. Therefore, it is suggested that no exceptions should be given to the rule of considering the accused innocent before his crime is proven.

Bails, if misused by the suspects can lead to a great danger in the hearing of the case and in ensuring justice to be served to the people of interest. But such cases are very rare because the Courts make sure the evidences and people related to the cases are not tampered with even if the suspect is granted a bail.

Bail is a very important part of Justice System and protects the fundamental rights of the society and the nation.

A famous quote about bails was given in Gudikanti Narasimhulu case by Justice V.R Krishna Iyer which states that:

“The issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process”.

– Justice V.R. Krishna Iyer in Gudikanti Narasimhulu case (1977)


Author: Medini Sharma from K.L.E. Society’s Law College, Bangalore.


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